* The Honorable Willi am J. Haynes, Jr., United States Distri ct Judge

for the Middle District of Tennessee, sitt ing by designati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0039P (6th C ir.) File Name: 04a00 39p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

T ERRY L. P EVELER , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-5778

Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 93-00014—Jennifer B. Coffman, District Judge.

Argued: October 24, 2003 Decided and Filed: February 6, 2004

Befor e: DAUGH TREY and G IL MAN, Circ

uit Judges ; HAYNES, District Judge. *

_________________ COUNSEL

ARGUED: Elizabeth S. Hughes, G E SS, MATTINGL Y & ATCHISON, Lexing

ton, Kent ucky , for App ellant. T erry M. 2 United States v. Peveler No. 02-5778

Cush ing, AS SIS TAN T UN IT ED STATES ATTORNEY, Louisville, Kentuc ky , for Appellee. ON BRI EF: Elizabeth S. Hughe s, GESS, MATTINGL Y & ATCHISON, Lexington, Ken tu cky, for Ap pella nt. Te rry M. Cus hing, C andace G. Hill, ASSISTANT UNI TED STATES ATTORNEY S, Louisville, Kentucky, for Appellee. Ter ry L. Peveler, Manchester, Kentucky , pro se.

_________________ OPINION

_________________ HAYNES, District Jud

ge. App ellant T er ry L. Peveler appeals the district

court's order deny

ing his motion to modify his sentence under 18 U.S.C . § 3582(c)(2). Peveler relies uponthe retroactivity of

Amendment 599 to U.S.S.G. § 2K2.4 that bars “doub le cou ntin g” of firearm enhancements where , as here, there is conviction under 18 U.S.C. § 924(c) arising fromthe sa me und erlying of fenses. Althoug

h originally indicted on 11 coun

ts, Pevele r subsequ

ently entered a guilty plea un der t he former Fed. R. Crim. P. 11(e)(1)(C) to a superceding infor mati on cha rging f ive count s o f drug-trafficking

in violation of

21 U.S.C. § 841(a)(1) and a sixthcount of ca

rrying a firearm during and in relation to a drug-trafficking

crime in violation of 18 U.S.C. § 924( c). Peveler contends that Amen

dment 599 prohi bits the two-level sentence enhanc ement in h is plea agreement

that the district court applied to determine his original sentence. Ther efor e, Peveler moves to modify his sentence by two le

vels. For the
reasons set forth

below, we

AFFI RM the di stri ct cou rt's judgmen t, but for differe nt reasons.
A. Proced

ural History

OnApril 6, 1993 a federal grand jury in Owe nsb oro, Kentucky returne d an 11-c ount indictm ent against Peveler and three other co-defendants. Peveler was named in seven of the 11 counts, with five of these counts charging him withNo. 02-5778 United States v. Peveler 3

1 In 2002, Fed. R. Cr im. R. 11 was a mended an d the curr ent vers ion of Rule 11(e) inc orporates the provisions of Fed. R. Crim. P. 32(e). The former Rule 1 1(e) (1)(C ) is now Rule 1 1(c) (1)(C ). Give n the fac ts of this

case and our rel iance on p re-20 02 p reced ents, we will contin ue to re fer to Peveler’ s plea ag reement as a Rule 11(e)( 1)(C) for ease of r eferen ce. drugtraffi cking in vi olation of 21 U.S.C. § 841(a)(1). The remainingtwo counts charged Peveler with vi olating 18 U.S.C. § 924(c) by using or carry ing a firearm in relation to drug traf

ficking crimes on November 12, 1992, and December

18, 1992. Initially , Peve ler ple d not guil ty to all
seven counts, but

after the district

court de nied his mo tion to suppress , he entered into a plea agre e ment with the gover nment.
The “Rule 11(e)(1)(C)” 1 p l ea agreement require d Peveler to plead g

uilty to a six-cou

nt su per seding information that charged him with the sa

me five drug-trafficking

counts in the original indictment, but with only one count of violating § 924(c ) by using or car

rying a firearm in relation to a drug trafficking

crime on January

24, 19 93. In return, the government

agreed to dis miss the two § 924(c) firearm charges and further agreed to re commend a prison sentence and fine at the low end of the a ppl icable g

uideline range s. The plea agreement contained an express provision that the total offense levelwould be 30, based upon specific guideline calculations in the ple a agre ement. Peveler entere d his guil

ty plea inSeptember 1994, but

preserved his right to appeal the districtcourt's denial of his motion to suppress. Peveler received a 18 1-month prison sentence, with the five drug-trafficking

counts account ing for 121 of these mon

ths, and the additional 60 mont h s attributable to his § 924(c) firearm conviction.

Peveler thenappealed

the denia l of his moti on to suppr

ess. We affirme d the distr

ict cour t's deni al of Peve ler's motion. United States v. Peveler , 1995 U.S. App. LEXI S 36888, 1995 WL 620961 (6th Cir. Oct. 19, 1995) (unp ublished t able decision). The Supre

me Court de

nied Pe vel er's subsequent 4 United States v. Peveler No. 02-5778

petition for a writ of certiorari. Peveler v. United States , 516 U.S. 1137 (1996).

Peveler then filed a pro se petition under

28 U.S.C. § 2255 for relief from his sentence, alleging that he pled guilty to the firearm count based upon his belief

that he could be convicted under § 924(c)for stori

ng fire arms in

proxim ity to illegal drugs. After his conviction, the Supreme Court in Ba ile y v. United States , 516 U.S. 137 (1995), held that a conviction for using a firea

rm in rela tion to a drug -traff

icking c rime can only ari se if the defendant “actively employed” the f

irearm. Th e districtcourt referred Peveler' s pet ition to the magistrate judge. The magistrate judge rec ommended that the district courtvacat e Pevele r's fir earm c onviction. Thi s recommendation

was based on

the government's concession that Peveler 's gui lty p lea to the

firear m c ount was no longer valid after Bailey . The governm en t, howeve r, withdr ew its concession

shortly after Bousley v. United States , 523 U.S. 614 (1998), i

nwhich the Supreme Court held that to assert a Baileychallen

ge suc cessful ly, a movant m u st show “c ause and prejudice” to avoid procedural defa ult or demonstr ate his actual innocenc e on th e § 924(c) charge a nd any other more
se riou s charges that w ere dis miss ed dur ing pl ea bargai ning. After Bousley, the district c ourt remanded the ac tion to the magistr ate jud ge fo r a recommendation on the firearm charg es.
The ma gistr ate ju dge con ducte d an ev ident iary heari ng, at whichthe government concede d Peveler's actual innocence of the fire arm charge in the superseding information. The hearing focused on whether Peveler had committed the other firearm charg es in the original indictment, that is, whether P eveler used or c arried

a firea

rm in rela

tion to drug-trafficking

crimes on November 12 , 19 92, and December 18, 1992. After the he aring, the ma gistr ate ju dge recommended

that Peveler's request for relief from his convictionand sentence o n the firearm count in the supersedinginformation b e denied. The district court overruled Peveler 's objec tions, ado pted the magistr

ate judge'sNo. 02-5778 United States v. Peveler 5

recommendation

and d enie d a ce rt if

ic at e o f a pp ea la bi li ty. Howev er, we granted a certifica te of appealability, bu t affirmed the district court's decision.

OnAugust 3, 20 01, Pevel er filed a motion to m

odify his sentence pursuant

to 18 U.S.C. § 3582(c). The district court referred the motion to a magistrate judge, who recommende d denying Peveler's motion. The d istric t judge adopted the

m agistrat e's finding and denied the motion. In e ssence, the districtcourt ad

opted the magistr ate judg e's conclusion t

hat a reduction was not warranted because the two-le vel enhancement

was not for Peveler's drug c onvictions, but for his possession of a firearm on a different month and year from the drug offenses. Peveler then appe al e d the d istr ict co urt's decision and filed a pro se brief in this court. We appointed counsel, who filed a brief on Peveler's beha lf, to which the government has responded.

B. Factual Ba ckground

InSe pt em be r 1 99 2, th e K en tu ck y S ta te Police and the police d epartment in Liv ermor e, Kent ucky, bega n investigatingPeveler

and his co defenda

nts for suspected drug traffick i ng. This investigation commenced after a confidential source i

nformed both law enforcement agenc ies that Peveler was using and selling illega l drugs in W estern Ke nt uc ky.

About the tim e of the investigation of Peveler, L ivermore Police Chief Cha

rles Co bb arr ested Larry Blanford for attempted theft of a motorcy

cle. Blanford agreed to ser ve as a confidential informant

and to purchase drugs from Peveler in exchange for cash pay

ments and the dismissal of his theft charge.

Pursuant to this arrangement, Blanfor d informed Cobb and Kentucky State Polic e Detectiv e Char les Brown that he purchased

marijuana from Peveler on Novem be r 12, 1992, and again on December 18, 1992, and that he saw Peveler 6 United States v. Peveler No. 02-5778

weigh and package various quantities of coc aine on January 24, 1993. Blanford repor ted seei ng fire arms ope

nly displayed in the room s of Peveler's trailer home where the marijuana sales took place in 1992 and further stated that he
sawfirearms in the closet of Peveler's bedroom where the cocaine packaging occurr ed i n 1993. Based on the informationprovided

by B lanford , warra

nts were is su ed to arrest Peveler and to search his trailer. The sea rch resulted in the recovery

of 1.5 p oun ds of cocaine, 12 pounds of marijuana, and fo

ur firea rms.
C. The Plea

Agreement

Peveler eventually ente

red into a pl ea agreement that required P ev eler to plead guilty

to a six-count superseding informationwith the sa me five d

rug-tr affick ing cou nts included in th e o ri gi na l i nd ic tm en t, bu t w it h o nl y o ne count of violating § 924(c) by

using or carry

ing a firearm

inrelation to a d ru g t ra ff

ic ki ng cr im e o n J an ua ry 2 4, 19 93 . E ss en ti al ly, the only differe nce between the origina

l in di ctment and the supersedinginformation was that the two § 924(c) firearm charges on November

12, 1992 and December 18, 1992, were dropped inexchan ge for the single § 924(c) c ount on January 24, 1993.
The plea ag

reemen t was und er then F ed. R. Crim . P. 11(e)(1)(C) and expressly provided that the sentencing level would be 30, but bas ed upon certain findings to be made by the Court unde

r the gu idelines. The plea

agree ment provides, in pertine nt part:

Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of t he Fe deral Rules of Criminal Procedure,

4. Defendant

understands that the charge to which he will plead g

uilty carrie s a combined maximum term of imprisonme

nt of 65 y ears, a combined maximum fine of t hree million dollars, and a 4 ye ar term of supervised

released. Defendant understands that a nNo. 02-5778 United States v. Peveler 7

additional term o f

imprisonme

nt may be order ed if the terms of the supervised released are violated, as explained in 18 U.S.C. § 3583. T here is not a mutual mistake here, but rather a retroa ctive application of a guideline.

* * *

10. A tthe time of sentencing, the United States wil l recommend

a sentence of i mpr isonment at the low end of the applicable GuidelineRange, but not less thanany mandatory

minimum term of imprisonment required by

law.

* * *

11. Both parties have i nd ependently re viewed the SentencingGuideline s applica ble in thiscase, and in the best ju

dgment a nd belief , conclud e as follows:
A. The Applicable

Offense Level s houl d be determ ined as follows: Base Offense Level 26 § 2D1.1(c) (9) Organizer or leader +2 § 3B1.1(c) Adjusted Based Offense level 28 Possession of Weapon +2 § 2D1.1(b) (2) TOTAL OFFENSE LEVEL 30

B. The Criminal History of the Defe ndant shall be determined

upon completion of the presentence investigation, pursuant

to Fed. R. Crim. P. 32(c)(2).

12. If the Court r

efuse s to accept this agreement and imposesentenc e in acc ordance with its ter ms ac cordingto the United States' motion pursuant t o Fe d. R. Crim. P. 119(e)(1)(C), this Agreement wi l l become null and vo id

a nd neither party

shall be bound thereto, and Defendan

t wil l be allow ed to wi th dr aw th e p le a o f g ui lt y. 8 United States v. Peveler No. 02-5778

* * *

14. Defendant

agrees that the disposition provided within this Agr eement is fair, ta king into accoun t all aggravating

and mitigating factors. De fenda nt states that he has informed the United States Att orney's Office and the Probation O ffic er, either directly or throu ghhis at torney, of all mit igating factor s. Defendant

will not oppose imposition of a sentence i ncor poratingthe dispos ition provided for within this Agreement, nor argue for any othe

r sentence. (Joint Appendix at 108-09, 112-113) (emphasis added). The districtcourt

accepted the parties’ guideline calculations and imposed the sentence of 181 months consistentwith the plea agree ment. Duringoral argument, Peveler conce ded tha t he does not want to set aside his plea agreem e nt, give n that to do

so would subject him to prosecutions ontwo additi onal § 924(c) firearm charg es. I

n any event, a s discusse d infra, this Cour t would lack the authority to set

aside the plea agreement under § 3582(c). D. Analysis

This Court rev iews a district court's decision to grant or deny a motion to

modify under 18 U.S.C. § 3582 for an abuse of discretion. United States v. Ursery , 109 F.3d 1129, 1137 (6th Cir. 1 997). Ye

t, to the extent that Pe

veler' s “arg

uments all rest on the lega

l interpr etation o f variou s [sente ncin g] guide lines,” the dist

rict court's interpretation of the sentencing g u idelines presents a question of law, subject to de novo
rev iew. United Sta tes v. Sm ith , 196 F.3d 676 (1999 ) (citin g United States v. Vincent , 20 F.3d 229, 241 (6th Cir. 1994)).

The statutory

authority for Peveler's sentence modification request is 18 U.S.C. § 3582(c)(2), which provides as follow s:No. 02-5778 United States v. Peveler 9

The court may

not modify

a term of imprisonment once it has been imposed except. ..in the case of a defendant who has been sentence d to a term of impriso nment based on a sente ncing range that has subs e quentl y been lowered by the Sentencing Com mission pursuant to 28 U.S.C . 994(o),

upon m oti on of the defendant... after c onsideri ng the f actors set fo rth in section3553(a)... if

such a re duction is

consiste nt with applica ble policy

statemen ts issued by the Senten cing Commission. (Emphasis added.)

18 U.S.C. § 3553(a) lists the f ollo wing re levant f

actors to be co ns id er ed wh en ru li ng on a m ot io n t o m od if y: (1) t he nature and circumstances of the off ense and th e history and cha racter istics of t he defe ndant; (2) the need for the sentence imposed– (A) to reflect the serious ness of the of fense, t o promote respect for the law, to provide just punishment fo rthe offense... * * * (5) an y p ertinent policy statement issued by the Sentencing Commission...

Ina policy statement, the UnitedStates Sentencing Commission addressed the d istri ct court's exerc ise of its discr etion on a § 3 582(c )(2) m otio n, st ating:

Indeterm i ning whether, and to what extent, a reduction in the term of

imprisonment is warranted for a defendant elig i ble for c onsidera

tion under

18 U.S.C. § 358 2(c)(2), the court should consider the term o f imprisonmentthat it wou ld have im

p os ed had the
amen dm ent(s) to the guidelines listed in subsection (c) been ineffect at

the time the defendant was sentenced... Application note 2 to U.S.S.G. § 1B1.10. 10 United States v. Peveler No. 02-5778

Peveler argue s that he is

entitled t

o reduct ion of his sent ence due to the

Sentenci ng Commiss ion's re

troacti v e applicationof Amend

ment 599 to

the sente ncin g gu idelines set forth in revise d § 1B1.1 0 of the U .S.S.G., a s follows: WeaponEnhance

ment. I f a sente

nce unde r this guideline is imposed in conjunct ion with a sentence for
anunderlying

offense, do not apply

any specific offense ch aracte ristic for possession, brandishing, use, o r disch arge of an explo sive or f irearm w hen dete r mining the sentence for the underly ing offense. A sent ence under thi s guideline accounts for any explosive or

we apon enhancement for the underlying offense of conviction, including anysuch enhancement that would apply based on conduct for which t he defen dant is accounta bleunder § 1B 1.3 (Re levant Con duct)

. Do not apply an y w eapon e nhancement in the guideline for the underlying

offense, for example. If ( A) a co- defenda

nt,
as pa rt of

th e j oi nt ly u nd er ta ke n c ri mi na l a ct iv it y, possessed a firearm different from the one for which the defendant wa s convicted under 18 U.S.C. § 924(c); or (B) in anongoing drug traff icking offense, the defendant posses sed a firearm other than the one for which the defendant wa s convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bac k robberi es, but is conv

icte d un der 18 U. S.C. § 924(c ) in connection

with only one of the

r obberies, a weapon enhancement

would app ly to

the bank robbery

which was not the basis for the 18 U.S.C.§ 924(c) conviction. (Emphasis added.) Eighteen U.S.C. § 358 2 (c) (2) “empowers the District Courtto modify

the prisoner's sentence that would othe

rwise be final.” United States v. Williams , 182 F.3d 919, 1999 WL 397945, **4 (6th Cir. 19 99). Be cause A mendment

599 is given retroa ctive ef fect, a defenda nt ma y seek re lief under § 3582(c)(2). United States v. Diaz , 248 F.3d 1065, 1107-08 (11th Cir. 2001); United States v. Aquino , 242 F.3d 859, 865No. 02-5778 United States v. Peveler 11

(9th Cir.2001). Yet, a district court “has the discretion to deny
a § 3582(c)(2) motion, even if the retroactive amendment has lowered the guid eli ne r ange.” Usery , 109 F.3d at, 1137, Accord, United States v. Wesley , 221 F .3d 13 37, 20 01 WL 799783, **2 (6th Cir. June 14, 2000).

Ge ne ra ll y, “[ o] nce the district court has accepted a plea agree ment, [this Court has] traditionally regarded the agreement

as a type

of con tract, and...[has] analyzed the respective obligations of the prosecution and the defen dant under general principles of contract law.” United Sta te s v. S kidmore , 998 F. 2d 372 , 375 ( 6th C ir. 19 93) (ci ting Uni te d States v. Mande ll , 905 F.2d 970, 973 (6t h Cir. 1990)). “A guilty plea, however, involves the waiver of at lea st three
con stitutional rights by a defendant...[and] [t]herefore, th e analo gy of a pl ea agr ee ment to a traditional contract is not complete or precise, and

the application of

ordinary c ontract lawprinciples to a plea agreement is not always appr

opriate.” Id ., citi ng United States v. Olesen , 920 F.2d 538, 541 (8th Cir. 1990).

In United States v. Weaver , 905 F.2d 1466 (11th Cir. 1990), the Eleventh Circuit noted the possibility of reforma tion of a Rule 11 plea agreement upon a showing of mutual mistake:

Reformation

of a w ritten agree

ment is wa

rrante d only when the evidence demonstrates that the parties' mutual mistake resulted

in a written docu ment which does not
accura tely reflect the t erms of their ag reemen t. Co ns eq ue nt ly, ref

or mation is generally , without more, notan availabl e remedy wh ere the evidence demonstrates mistake or change of mind of only one of the contracting parties.

Id

. at 1472 (citations omitted). In di cta , the First Circuit suggested that modif

ication o f a plea

agree ment unde

r a Rule 11(e)( 1)(C) may be justifi ed upon a showing of a mutual mistake United States v. Teeter , 257 F.3d 14, 28 n.12 (1st Cir. 2001). 12 United States v. Peveler No. 02-5778

Yet, a rule o f crim inal p rocedu re can l imit a court 's
a uthor it y. United States v. Robinson , 361 U.S. 220, 223, 229-30 (1960) “([T]he co urt may not enlarge the period for taking any action under rules 33, 3 4, and 35, except as otherwis e provided

in those rules). ” Here , Rule 11 recognizes three t ype s o f plea agreements Fe d. R. Crim. P. 11(e)(1)(A) throu gh(C). Peveler’s plea agreement is under f ormer Rul e 11(e)( 1)(C) which expr essly li mits the di stri ct cou rt's authority to mo di fy t he agr eement. Accordingly, the threshol d issue here is whether

the district court possessed the authority to modify parties'

agreed sentence that wa s imposed under a Rule 11(e)(1)(C) plea ag reement.
At the time of Peveler's 1994 plea agr eement, former

Rule 11(e)( 1)(C) provided

only that the p arti es “a gree t hat a specifi c s entence is the appropriate disposition of the case.” A Rule 11(e )(1)(C)

plea ca n also include “the language in the plea agreement whereby

the parties agreed that

‘any sentence of incarceration sh all not exceed the midpoint of the sentencingg uideli ne range that the court finds to be applicable.’ This langua ge has been held to be the equivalent of a senten

cing re commenda

tion under

Fed. R.Cr

im. P. 11(e)( 1)(C) that is binding on a district court.” United States

v. Benjamin , 188 F.3d509, 199WL685924 * 2 (6th Cir. August 26, 1999).

Even under the pre-1999 version of for mer Ru le 11(e)(1)(C), we held that “[o]nce the cou rt unq ualified

ly accept s the agreement it too is bound by the bargain.” United States v Holman , 728 F.2d 809, 813 (6th Cir. 1984) (citations
om i tted). Prior to the

1999 amen

dments to Ru

le 11(e) , in Fields v. U

nited Sta tes , 963 F.2d 105 (6th Cir. 1992), a defendant argued that thedistrict court's acceptance of a Rule 11(e)( 1)(C) plea agreement bound the district court toaccept th e sentence in his Rule 11(e)(1)(C) agr eement. We disagreed and held that “[a] sentencing judge could no longer be forc ed to abide by an

agreed to sentence whe

re that sentence did not conform to the Guidelines , as that would eviscer ate their purpose.” Id . at 10 8, cit ing United Sta te s v. Kemper , 908No. 02-5778 United States v. Peveler 13

2 Mo re recent

deci sions in other circui ts questi on Fiel ds , citing the 1999 amendmen ts to Rul e 11 and U .S.S.G . Ch.1 pt .A 4( c) an d Ch .6 ,p t. B, introductory cmt. and U.S.S.G. § 6B 1.2, and concluding that t he guide lin e s and pol icy gui des do not

precl ude a di str ict

court fr om imposing a sentenc e outsid e the gu ideline s unde r a Ru le 11(e)(1)(C) plea agree men t. Un ited States v . Goodal l , 236 F.3d 70 0, 704-06 (D .C. Cir. 2001), and authorities cit ed therein. F.2d 33 (6th Cir. 1990). Fields 2 required the distri ct court s to conside r a Rule 11(e)(1)(C) plea ag reement in conjunction with the Sente ncing G uideline s and, und

er Fiel ds, the district court retained the authority

to rese rve judgment on acceptance of the ple a agre ement:

InKemper t

h is c ourt recognized that Holman, which
was decided

before the Sentencing Guidelines, had been overruled by “the 1987 ame

ndments to the Federal Rules of Criminal Procedure and the implementation of the ... Guidelines.” Id. at 35. A s entencing judge could no longer be forced to abide by an a

greed to sentence where that sentenc e did not c onform to the Guide li nes, as that would eviscerate their purpose.

The Kemp er

cou rt explained that if a plea agreement has been ac cepted by the court b efore t h e presentence report has been conducted, Gu idelines § 6B1.1(c) describes the proper procedure:

The court sha

ll defer it decisionto accept or reject any nonbinding recomme ndation pu rsuant t o Rul e 11(c)(1)(B) and the court 's decision to accept or reject any plea a gre ement pursuant to Rules 11(e)(1)(A) and 11(e)( 1)(C) un ti l t he re ha s b ee n a n o pp or tu ni ty t o consider the pres entence

report.
Guideline § 6B1.1 a s interpr ete d b y K

emper , makes contingent

u p on its review of the

present ence re port. For, “only

if the co

urt is sa

t isfied ... that the contemplated

sentenc e is with i n the gu idelines” can it 14 United States v. Peveler No. 02-5778

accept an agr eeme nt requirin

g impositi on of a spe cific sentence. Kemper, 908 F.2d at 36-37. Uponreview of the presentence re port, if th e sentencingcourt determines that there was an error in the calcu lating the agreed-upon sentence , it must reject the plea. Id.; U.S.S.G. § 6B1.3. The court must then “af ford the defendant an

opportuni

ty to with draw t he defe ndant 's guilty plea.”

U.S.S.G. § 6B1.3.

Id . at 108-09.
With the 1999 amendments to Rule 11(e)(1)(C), thecurrent versionof forme

r Rule 11( e)(1)( C) expressly limits a district court 's authority to alter or modi fy any sentence imposed under suc h an ag reemen t: (e) Plea Agreement Proce dure. (1) In G e neral. An attorney for the government and the defendant's attorney, or the defendant when p roceed ing pro se, may discuss and r each a plea agree ment. The court must not participate i n these discussions. If th e defen dant plea ds guilty or nolo contendere to either a charged offe nse or a lesser or related offense, the plea agre ement may specif y that an attorne y f or the g overnme

nt will:

* * * (C) agreethat a speci fic se ntenc e or sen tenci ng range is the appr

opriate disposition

of the ca se, or tha

t a particular provision of the Sentencing Guidelines, or p olicy s tatement, or sentencing factor does or does not apply ( such a rec

ommendation or req uest binds the court once

the court ac

cepts the plea agre

ement )

. (Emphasi s added.) The underscored lang uage was addedin the 1999 amendments to Rule 11.No. 02-5778 United States v. Peveler 15

Albeit in unpublisheddecisions, we have held that in light
o f the 1999 amendments, upon “accepting the [Rul e 11(e)(1)(C)] agree

ment, the district c ourt bound

itself to t he govern ment's end of the guideline range

. If the district court d i d not agree with the governme nt’s binding sentencing recommendation, it was fr ee to re ject th e agreem ent. Once the district court chose to accept the agreement, however, the court was required to follow

its provisions.” United States v. Taylor , 14 Fed.Appx. 546, 5 5 2, 2001 WL 814924 * 6 ( 6th Cir. 2001).

In another un p ublished decision concerning a Rul e 11(e)( 1)(C) plea ag

reemen t, we held that “once a district court accept s a plea agreement

where parties agree d on “a specific sent ence or sentencing range,” the district court is bound b y the parties’ plea agreeme nt” and “cannot impose a sen t ence gr eat er or le ss severe t

han w hat is in the plea agr eeme nt[]” unless “ the terms of the plea agreement are equivocal.” United S tates v. Debreczeny , 69 Fed. Appx. 702, 705, 2003WL21580433 * 3 (6th Cir 2003). I n the latte r in stanc e, “the districtcourt h as discretion to interpret its terms.” Id

. We follow an

d adopt the

rationa le o f these unpublished decision s. Here, at the time of sentencing, the district court applied the parties’ cal cul ations of the relevant guidelines to Peveler’s plea agreement. Yet, this Court has not addressed whether a districtcourt has the authority to modify of a sentence under
a Rule 11(e )(1)(C)

ple a agree ment based upon a retroactive amendment

to a guid eline tha t was utilize d to deter

min e the defendant's sentence.

The Seve nth and Tent h Circuits have held that retroactive amendmen ts t o the sent encing guideli nes provi de lega

lly insufficient

basis on w

hich to mod

ify a senten ce unde r a Rule 11(e)( 1)(C) plea agreement. I n United States v. Trujeque , 100 F.3d 869 ( 10th Cir. 19 96), th e Tenth Circuit observed that a district court lacked jurisdiction to consider a motion to modify a sentence under § 3582( c) (2), based upon the 16 United States v. Peveler No. 02-5778

retroac tive Amendment 488 to U.S.S.G. § 2D1.1(a), where the sentence was based upon a Rule 11(e)(1)(C) plea agree ment:
The gover

nment is c orrect in its assertion that federal courtslack j urisd iction to r eview a Rule 11(e )(1)(C) sentence where a

prisoner

claims tha

t his Rule 11(e)( 1)(C) sentenc e is g reater than t he sen tence r ange spec ifiedin the app licable g uideline s. See 18 U .S.C. § 3742(C)(1); United States v. Denogean , 79 F.3d 1010, 1013-14 (10th Cir. 1996), cert. denied, 5 1 9 U.S. 856, 1117 S.Ct. 154, 13 6 L.E d. 2d 99 (1 996); United States v. Prieto-D ur an , 39 F.3d 1119, 1120 (10th Cir. 1994). However, this is not a direct appeal of Mr. Truje que's sentence, nor i s ita collate ral atta ck under 28 U.S.C. § 2255. Rather, Mr. Trueque has filed motion under 18 U.S.C. § 3582 (c)(2). And the viability of his motion depends entir ely up on that sta tute. Our

appella te j uri sdiction over final decis ion extends as far a s to consider the distri c t court' s denial o f Mr. Tru jeque' s § 3582 (c)(2) motion.

Id

. at 870-71 (emphasis added). The Tent h Circuit then ruled that the defendant's sentence wa s not actually calc ulated unde rth e guide lines, but was dete

rmined by

the Rule 11(e)( 1)(C) plea

agreement. Id . at 871. Thus, this retroactive amendment

could not have affected the origina

l sentence, and the Tenth Circ

uit dir ected a

dismissal o f the motion to modi fy. Id . Similarly, Peveler was sente nced pursuant to a Rule 11(e(1)(C) plea agre ement that binds both the parties and the c ourt. The fact that the p arties in this case specified
anoffense level under thesentencing guidelines rather than a fixedperiod of imprisonment like the parties in Trujeque is a distinction without a differencein terms of the court lacking the power to amend the plea agre ement.

In United Sta tes v. Hemminger , 114 F .3d 11 92, 19 97 WL 235838 (7th Cir. May 2, 1997), the Seventh Circuit affirmed the denial of

a motion to m

o dify under

§ 3582(c)(2) basedNo. 02-5778 United States v. Peveler 17

upona re troactive amendment to the relevant sentencing guideline for the d

efenda nt's sen tence. T here, the Rule 11(e)( 1)(C) plea agreement expressly stated that the agreed sentence was not premised on the Cou rt's or probation
o f ficer's calcula

tion of the

guideli nes. The Seventh Ci

rcuit ruled:

After accepting

the agreement, the court

"is not fr ee to revisit the plea a

greement simply

because, for

whatever reason, the defendant later comes back to the cour t for resentencing." United Sta tes v. Rit se ma , 89 F.3d, 399 (7th Cir. 1996). See also Unit ed St ates v. Barnes , 83 F.3d 934, 938 (7th Cir. 19 96). The sentence, under a Rule 11(e)( 1)(C) plea

rests on the parties' agre ement, not on the ca lculation under the Sentenci ng Guide lines.

Of c ourse , a defendant is entitled to contest a plea under Rule 11(e )(1)(C)

on the same grou

nds th at any other pl ea ma y be ch al le ng ed

-- th at it wa s i nv ol un ta ry, that is was the result of ineffective assistance of counse l, that the indictment

does not state an

offense, and so on. But Hemming er does n

ot want towithdraw his plea and go to trial; he does not contend that the plea is infirm on any legal or factual ground; instea d he wants to keep the benefit s of the plea w hile r eceivi ng a lower sentence. That possib il it y i s one he bargained away in 1990. Havin g receiv ed the be nefits of his agr

eement, Hemminger

must acc ept the portions favor able of the prosecutor.
Id

. at * 1. Himminge

r differs only in that Peveler's plea agreement

provided that the district court would determine what the guide line calcul ation "shou ld be." 18 United States v. Peveler No. 02-5778

3 There is aut hori ty to s upport Pevel er’ s cont enti on that Amendm ent 599 precludes an enhancement above the gu ideli ne calcu lati on wh ere a Secti on 924(c) convi cti on is among t he re lat ed con du ct leading t o the calc ulation of the guidel ines. See United Stat es v. Aquino , 242 F. 3d 859, 863-66 (9th C ir. 200 1); United Stat es v. Wright , 7 Fed. Appx. 296, 2001 WL 420495 (4th Cir. 2001). In a wor d, the iss ue concerns the enhancement for relat ed conduct, not whethe r the off ense s occu rred on different dates.

4 Th is conclusion sho uld not be c onstrued as a blank et bar to all such motions for relief. F ed. R . Crim . P. 35 (b) ha s bee n dee med a po te n tial basis for re lief

in an “except ional case,” Un ited S tates v. M ukia , 26 F.3d 953, 955 (9th C ir. 199 4). Th e First Circui t in dicta noted a “r are case”

e xcept ion to allow mod ification “to avoid a misca rriage o f justice o r to correct a mutualmist ake.” Teeter , 257 F.3 d at 28, n.12. We do not consider either of these potential exce ptions here. T here is n ot a m utual mistake here, but rat

her a retr oactiv e application of a guidel ine. We note, ho we ver, that

with the t wo-lev el deduct ion sough t, Pevel er’s actual senten ce is within the revised sent encing guideline r ange although the senten ce is not at

the low end of the revis ed guidel ine range as provi ded in the ple a agre eme nt. Pev eler d oes n ot seek to set a side his pl ea agree men t. Assuming that P eveler is correct in his interpretation of Amendment

599 as ap

plied to his

sentence 3 , we defer

to the expresslanguage in the

1999 amen

dments tothe forme

r Rule 11(e )(1)(C ) and our unpublished decisions on that Rule. 4 T hu s, absen t an agre ement of the parti es, th e plai n langu age of the current version of Rule 11(e)(1) (C), no w Rule 11(c)(1)(C), generally

prec lu des the district court from alteringthe parties' agree d s ente nce unde r 18 U.S.C. § 3582(C). This conc lusion app lies desp ite the re troactiv ity of a subsequent amendment to a relevant guideline utilized to determine the defendant's sentenc e. For these reasons, we AFF IRM the district court's order

.